Religion and Electoral Politics: Recent SC Judgement

On January 3, 2017, the Supreme Court has ruled that “religion, race, caste, community or language would not be allowed to play any role in the electoral process” and that election of a candidate would be declared null and void if an appeal is made to seek votes on these considerations. The same bench was also reviewing the 1995 three bench judgment of the Supreme Court that equated Hinduism with Hindutva and held it as a way of life, resulting in usage of these terms not constituting part of corrupt practices underlined under section 123(3) of RoPA 1951.

Questions & Answers

This issue must be understood in the light of below questions.

• What is the mandate of Section 123 of the Representation of the People Act?
• Explain and analyze the recent Supreme Court Judgement and possible reasons behind it.

What is the mandate of Section 123 of the Representation of the People Act?

Section 123(3) of RoPA defines a corrupt electoral practice as follows: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community….”

In above provision, the term “his” has been differently interpreted. As the previous judgments handed out conflicting views on the interpretation of pronoun “his”, the seven members bench also had to decide, whether the term “his” mentioned in section 123(3) implied-Only the electoral candidate (and his agent, or persons speaking with his consent)? Or did it also qualify the person to whom the appeal was addressed (the elector)?

Explain and analyze the recent Supreme Court Judgement and possible reasons behind it.

In order to achieve the purity of elections, the majority decision was that there should be removal of religion, region, caste and language as a basis for mobilization in electoral practice, that is, blanket ban on usage of primordial identities of both the candidate and the voters in the public life.

However, the bench refrained from revisiting its 1995 judgment on whether the words “Hindutva” and “Hinduism” connote the “way of life” of the Indian people and not just Hindu religious practices. The reasons behind such decision are as follows:

• As region, language, caste, etc were precisely the kind of divisive forces that threatened the fragile consensus in the country, so we need to avoid them so as to unite and hold citizen together.
• Moreover democracy depended on voters exercising their franchise on the basis of rational thought and action, and appeals to religion, language, and caste were inherently emotive and irrational in nature.

Taking a pragmatic look at the issue, following issues can arise

• Historically, discrimination have happened on religion, race, caste among other grounds in India, therefore mobilization of electorate to correct the gross injustice, cannot be dubbed as immoral or illegal.
• Moreover, Human beings are always situated within their social contexts, which forms a part of their identity; and in India, these contexts have been characterized by religion, language, caste, and community.

In addition there is a practical difficulty in separating issues from these primordial identities which would surely shoot up the amount of litigations toward already overburdened judiciary, for seeking clarity and resolution.